Commentary: Praise for Baze

The following post is by Professor Douglas A. Berman of Moritz College of Law at The Ohio State University. Mr. Berman runs the blog Sentencing Law and Policy, where this entry is cross-posted.

I suspect the nearly 100-page Baze lethal injection ruling from the Supreme Court will be subject to a lot of criticism, in part because the array of disparate opinions provide lots of fodder for anyone who want to beat up on the Court as a whole or on just about any particular Justice. Indeed, I likely will take some pot shots at the Court’s work once I have a chance to read all the Baze opinions closely. However, my first reaction to the opinion upon a quick skim is to heap lots of praise on the Court’s collective work. Here’s my thinking:

1. The Court collectively merits lots of credit for relatively speedy work on such an important and challenging case. I was worried state would might have to wait until June for an opinion, but it is now clear that the Justices prioritized getting this case completed so that the urgent business of the death penalty can move forward. Though lacking a clear and strong majority opinion, the Baze ruling still gives states and lower courts a lot of needed constitutional guidance on execution protocol issues.

2. In part because it is lacking a clear and strong majority opinion, the Baze decision provides a little something for everyone. Though I suspect that the anti-death-penalty crowd will be disappointed with the outcome, I suspect many will suggest the “loss” here is mitigated by lots of textured language to be found in all of the opinions. Similarly, the pro-death-penalty crowd may be disappointed that the opinions of Justices Scalia and Thomas did not carry the day, I suspect they will take comfort in Al Davis’s old saying, “Just win, baby.”

3. In part because the Baze decision provides a little something for everyone, the Baze decision’s true impact will largely be decided by local officials (including state judges and “local” federal district judges). Those local officials eager to get executions going again will have new wind behind the sails of an argument that standard lethal injection protocols are constitutionally sound; those local officials content with the de facto moratorium status quo can use various parts of Baze to justify claims that everyone should go slow as officials re-examine execution protocols in light of the Supreme Court’s new guidance in Baze.

4. In part because the Baze decision’s true impact will largely be decided by local officials, the politics and practicalities of the death penalty can, should and likely will now largely return to where they belong "” namely in the hands of local officials, most of whom are elected and politically accountable. I often view the death penalty in America as an example of modern federalism at its finest: states with an affinity for the death penalty can spend (waste?) a lot of time and money on capital cases, while states less excited about this punishment can reject its use de jure or de facto in various ways.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.